SZQQU v Minister for Immigration

[2012] FMCA 278

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQU v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 278

MIGRATION – Review of decision of Refugee Review Tribunal – persecution – where applicant claimed persecution on political grounds – whether Tribunal made a mistake of fact – whether wrong finding of fact amounts to jurisdictional error – credibility – whether court has jurisdiction – interpretation – whether denied hearing required under s.425 of Migration Act 1958 (Cth) – apprehension of bias – whether Tribunal decision reached with mind not open to persuasion and unable or unwilling to evaluate all material fairly – natural justice hearing rule, s.422B of Act – consideration of conduct in Australia – merits review – whether Tribunal provided enough time for making of case – whether Tribunal failed to take into account relevant information – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 51A, 54, 58, 65, 91R(3)(b), 422B, 425

Abebe v Commonwealth (1999) 197 CLR 510 of 137
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
M75 of 2002 v Minister for Immigration [2007] FCA 1212
SZGYM v Minister for Immigration [2007] FCA 1923
SZJZE v Minister for Immigration [2007] FCA 1653
WACO v Minister for Immigration [2003] FCAFC 171
WAKS v Minister for Immigration [2006] FCAFC 3

Applicant: SZQQU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2114 of 2011

Judgment of: Raphael FM

Hearing date: 21 March 2012

Date of Last Submission: 21 March 2012

Delivered at: Sydney

Delivered on: 21 March 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2114 of 2011

SZQQU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He last arrived in Australia on 1 March 2010 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 24 March 2010.  On 29 July 2010 a delegate of the Minister refused to grant a protection visa and on 12 August 2010 he applied for a review of that decision by the Refugee Review Tribunal.  The applicant attended before the Tribunal at two hearings together with his agent.  The first hearing took place on 21 October 2010. It was adjourned when the Tribunal concluded that the interpretation of some technical matters was not up to a satisfactory standard.

2. The hearing was resumed on 9 December 2010 with another interpreter.  After the hearing concluded the applicant’s advisor provided additional information to the Tribunal on 16 December 2010, 13 January 2011, 10 May 2011, 1 August 2011 and 17 August 2011.  On 25 August 2011 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 26 August. 

3. The applicant’s claim to be a person to whom Australia owed protection obligations arose from what he claimed was the persecution brought about because of his political views and the expression of those views in public.  The applicant is a businessman.  He had lived in Shanghai from approximately 2000.  He operated through a number of companies and states that from March 2007 until February 2010 he was vice-president of a commercial chamber.  The applicant provided a statement with his PVA [CB 31-33].  He told that he created a steel technology company that entered into a joint venture arrangement with the local Government in the H Province.

4. In September 2008 the H Provincial Government hosted an investment seminar in Shanghai and he told that he had spoken to journalists critically about the rising cost of property in the Shanghai region.  This opinion was criticised by the Provincial officials.  The applicant tells that he repeated these comments in March 2009 at a meeting of the commercial chamber and made some additional remarks about persons in high authority in state banks and state enterprises.  He says that as a result of this Provincial authorities began to make trouble for him by sending local construction people to interrupt his construction activities.  He said that because of these problems he had to quit the joint venture project and then the Provincial Government persuaded the local court to freeze his personal assets in August 2009.  He stated that there was a legal challenge to this freezing order which was, apparently, successful, but the funds were never unfrozen because of state interference.

5. Around this period of time, the applicant’s daughter obtained a student visa to study in Australia and came here, together with his wife, who had obtained a student guardian visa.  The applicant travelled to Australia on two prior occasions before his last visit being from 4 to 7 June 2009 and 9 to 16 February 2010.  He told the Tribunal that these visits were for the purposes of research and that as a result he formed a company in Australia in February 2010.

6. The applicant told that after he arrived in March 2010 he found that he was no longer able to use a website and blog that he had been authoring and he had been told that the Government was going to commence criminal proceedings against him.  He said that his bank accounts relating to his companies had again been frozen.

   “The Tribunal asked the applicant when all this happened and he said it was after he came to Australia on 1 March; he was told by his family about it.  The Tribunal asked him why that would suddenly happen in March 2010.  The applicant said It was a long story” and there was litigation against him and the company but in his view the charges are not valid.  He explained there are two charges pressed against him in China, namely, that the company has stolen the money and the company is involved in insider trading.  The Tribunal asked the applicant when he found out about the specific charges and noted that in the submission received by the Tribunal in September 2010 it is indicated that he was assuming that there were criminal proceedings against him.  The applicant said that the two charges occurred after he came to Australia and they are not valid otherwise why would they not be brought in 2007, 2008 and 2009. He said the charges were fabricated because of his political beliefs and activities.  The Tribunal queried, again why this occurred in March 2010 after he came to Australia and noted that his business visa was about to expire in May 2010.  He said he is” in the dark” about that but they are cracking down and this was going on continuously, step-by-step.  He said that he was entrepreneurial and did not have “due diligence” about this.  He then said he discovered there was one charge before March.  He explained that someone inside the Bureau of Finance said there could be adverse things against his company and said that he withdrew money from the company.  The Tribunal asked when he discovered this one charge asking whether it was before he came to Australia.  The applicant said it was discovered after the review of the case involving himself/the company [with the Provincial Government].  The Tribunal asked him, again when he discovered this specific charge against him.  He said that it was some time before March and was after the proceedings with the Provincial Government.  The applicant said they were given a decision in their favour by the court in December 2009...the applicant said they had a successful review and the court found in their favour in December 2009 but the successful outcome was not enforced by the court...The Tribunal asked him whether there was another appeal following the successful review.  The applicant said there were two charges after he came to Australia and one was withdrawing money and another was insider trading.  He said he did not appeal because he was too busy.” [41] [CB 203-204].

7. The applicant told the Tribunal that after his earlier visits to Australia he had returned to his home and lived there.  The Tribunal queried why he would do this when his accounts were frozen.  He indicated that this only then applied to two of his accounts.  The Tribunal questioned why he did not take legal advice about what was occurring and the applicant indicated that the lawyers that he approached would not undertake his case.

8. Whilst in Australia he has involved himself in some organisations which are critical of the Chinese regime and, in particular, an organisation known as the Chinese Jasmine Movement. The applicant was questioned about his involvement and the provisions of s.91R(3) of the Migration Act 1958 (Cth)[1] were explained to him.  The Tribunal discussed with the applicant independent country information that it was aware of concerning the issuance of passports and the ability of persons who were the subject of concern to the authorities to obtain a passport and to utilise it to move in and out of the country.

   [1] “Act”

9. In its Findings and Reasons:

   “[69]The Tribunal finds that the applicant did not leave China at any time to come to Australia, including March 2010, because he was afraid of harm, amounting to serious harm, there, because he spoke out/participated in activities against the Chinese Government authorities.  The Tribunal does not accept as true that the Chinese Government/authorities were interested in the applicant, monitored the applicant’s home or took steps to economically injure the applicant and his companies at any time before he left China in March 2010 for the reasons that the applicant claims, namely because he expressed political views which were critical of the Chinese Government/ authorities.  The Tribunal does not accept as true the applicant spoke out against the Chinese Government in China including publicly, via the media/journalists or, to the extent that he claims it in China, via the internet, email or blog sites, before he left there in March 2010.  The Tribunal does not accept as true that the applicant’s personal and company assets were frozen and/or taken over by the government, or that false charges were made against him, because he expressed his political views which were against the Chinese Government/authorities, including about fairness to social issues in China.

   [70]In the Tribunal’s view if the applicant feared harm amounting to serious harm in his country for the reasons that he claims he would not have returned to China to his work and to live in the family home in Shanghai on two occasions after leaving China in June 2009 and in February 2010 and he would not have remained living in the family home until he left there to come to Australia in March 2010”. ...[CB 213].

10. The Tribunal provides reasons for coming to the conclusion set out above.  It considered that the applicant had given confused and conflicting evidence about when false charges about him were made and when he became of adverse interest to the authorities in China.  At [71] [CB 214] it explains how it came to that opinion.  The Tribunal also felt that given the applicant’s claims about his commercial and entrepreneurial standing and experience in China he would have been able to tell it or produce to it more evidence about the charges on the basis of the other proceedings against him including those that resulted in the freezing of all his company’s assets if those claims were true.

11. The Tribunal did not accept that the lawyers would not act on his behalf because they considered this matter to be a sinister issue.  The Tribunal noted that the applicant had formed a company in Australia before he came out here for the final time and made his application for a protection visa.

12. The Tribunal considered, in some detail, some documents that the applicant had provided to it and discussed with him independent country information that it had had about fraudulent documentation in China.  It concluded that because of its doubts about the applicant’s credibility, combined with the independent country information, it could not accept that the documents provided were reliable evidence of the facts contained in them.

    “[74]Nor does the Tribunal consider that the various blog reports, email account records and website reports are reliable evidence that the Chinese Government has blocked or closed his e-business or blocked/closed his email or blog accounts or websites for the reason that the applicant claims.” [CB 215]

13. Finally, the Tribunal discussed the applicant’s activities in Australia in the context of s.91R(3) and concluded it was not satisfied on the evidence before it that he had become involved in those activities in Australia otherwise than to strengthen his claim to be a refugee and, therefore, disregarded that evidence for the purposes of the application.

14. It is important for the applicant to note that the Tribunal’s decision record and findings and reasons do not deny, in terms, that his bank accounts were frozen or that he might have suffered the other indignities to which he refers.  The Tribunal’s decision concentrates on whether it can accept that the reason for those occurrences (if they did occur) was the Convention reason of political opinion.  It is because the Tribunal finds the applicant is not credible in his general evidence that it does not accept that this was the reason that those events happened, if they had happened.  So it would not be enough for the applicant to show that the Tribunal was wrong in coming to the conclusion it did as to whether or not his accounts were frozen, for example.  He would have to show there was some jurisdictional error in the way in which the Tribunal concluded that this was not because of his political opinion.

15. On 20 September 2011 the applicant filed an application for review with this court.  On 24 January 2012 he filed an amended application.  The form of that document, described as “particulars of each ground of application”, is a lengthy submission in which he suggests that the Tribunal’s view that he had given confused and conflicting evidence about when the false charges against him were made, is an incorrect assessment of his evidence.  As Ms Rayment says in her helpful written submissions “This ground contains a number of allegations, none of which is made out by the provision of evidence.”  I agree with her that no mistake of fact appears on the fair reading of the Tribunal’s description of the applicant’s evidence and there is no transcript of the Tribunal hearing so as to contradict the Tribunal’s record of the evidence. 

16. It is also worth reminding the applicant that in a judicial review application, there is no error of law, let alone a jurisdictional error in a Tribunal making a wrong finding of fact; Abebe v Commonwealth (1999) 197 CLR 510 of 137.

17. The applicant expresses his concern that the Tribunal, in its assessment of his evidence, concludes that it lacks credibility.  But it is not for this Court to argue with that type of finding:  Re Minister for Immigration & Multicultural Affairs;  ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J nor is it for this court to interfere with the Tribunal’s finding that it cannot rely on the documentary evidence provided by the applicant in part because of its concerns about the applicant’s own credibility.

18. In any event, even if the Tribunal had accepted this evidence, it would only have gone to the fact that at some stage the applicant’s accounts were frozen. As I said before it does not go to the reason that those accounts were frozen. That is the issue that faced the Tribunal and that is the issue that credibility is important for. The applicant really only had his own evidence of his comments critical of the Government. It was for the Tribunal to decide whether or not that evidence satisfied it as required by ss.36 and 65 of the Act.

19. There is, in the submission, some reference to misinterpreting.  However, it seems to me that what the applicant is really saying here is, “There must have been misinterpretation, if the Tribunal did not believe me.” That is not sufficient to establish what would constitute a jurisdictional error by denying the applicant a hearing required under s.425, as considered in cases such as M75 of 2002 v Minister for Immigration [2007] FCA 1212 per Gray J at [51- 52], SZGYM v Ministerfor Immigration [2007] FCA 1923 per Gray J at [28-30] or SZJZE v Minister for Immigration [2007] FCA 1653 per Middleton J at [21], noting that in WACO v Ministerfor Immigration [2003] FCAFC 171 at [66] the Full Bench opined that:

    “However, the requirement is not that there be a perfect translation.  It suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”

20. The applicant also indicates that if the Tribunal’s failure to accept him as a credible witness was not induced by misinterpretation it must have been induced by bad faith or bias.  My conclusion on that submission is reflected in that of the Full Bench; Nicholson, Lander and Siopis JJ in WAKS v Minister for Immigration [2006] FCAFC 32 where their Honours opined at [30]:

    “There is a suggestion in one paragraph of the appellant’s written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria. Although the primary judge found the first claims by the appellant ‘rambling and disconnected’ and referred to lack of focus in written submissions by the appellant, it is apparent from the RRT’s reasons that it tried to distill the claims made by the appellant and consider them against the requirements of the Migration Act 1958 (Cth) and the Convention.”

21. In his written submissions the applicant makes reference to ss. 54 to 58 of the Act. Those sections follow s.51A which indicates that subdivision A to D of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The sections that the applicant refers to are not referrable to the RRT which is covered by s.422B of the Act in similar terms. Applying those sections in place of those referred to by the applicant I am not satisfied that any ground has been made out that the provisions of the Act have not been complied with.

22. The applicant also argues that the Tribunal did not apply s.91R(3) because it did not accept that the applicant met the requirements of 91R(3)(b), but the submissions made by the applicant, attached to his amended application and held with these papers, appears to me to be merely argumentative and do not point to any jurisdictional error. The decision that the Tribunal came to about the application of that subsection was open to it, on the evidence, and for this court to say differently would be to be providing the applicant with a merits review that is impermissible.

23. The applicant addressed me at some lengths today.  He complained that he was not allowed to submit additional information to the Tribunal.  He did not mean that he was not allowed to submit any additional information but he seemed to think that the Tribunal’s decision should remain open for an indefinite period whilst he collected extra evidence.  Some may consider that the Tribunal’s actions in accepting evidence over six months after the hearing was generous and that by August 2011 it had given the applicant sufficient opportunity to satisfy it of his claims.  That is certainly the view that I would take.  The applicant also expressed the view that the Tribunal did not properly understand the situation in China but the Tribunal did explain to the applicant the concerns it had and discussed with him the available independent country information. 

1. It is an applicant’s responsibility to satisfy the Minister of his claims and that may include satisfying him that the situation in China is not as the member believes.  If the applicant was unable to do this then this is not a jurisdictional error on the part of the Tribunal.  I comment, in passing, that the applicant also complained that within the Chinese community in Australia there were not lawyers who would take on politically related cases, being cases which would be critical of the regime in the People’s Republic of China.  This is not my experience and I do not believe that it is a valid criticism of members of the legal profession of Chinese ethnicity who I believe provide excellent service, not just to members of their community, but to people of this State in general.

2. In my view the applicant has failed to convince me that the Tribunal made a jurisdictional error in the manner in which it came to its conclusion.  The application is therefore dismissed.  The Applicant must pay the First Respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  3 April 2012